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PMBR MBE FC ConLaw

Foundation Course: ConLaw review

QuestionAnswer
Con Law - Case and Controversy Requirement Federal Court adjudication requires an actual and definite dispute between parties having adverse legal interests.
Con Law - Standing Plaintiff must show a concrete personal stake in the outcome. Constitutional Standard: 1. Injury-in fact (i.e., economic, aesthetic, environmental) 2. Causation/redressibility
Con Law - Justiciability Ripeness Advisory Opinions Mootness Political Questions Standing
Con Law - RIPENESS RIPENESS – For a case to be ripe, there must be a genuine, immediate threat of harm
Con Law - MOOTNESS MOOTNESS – A case is moot unless an actual controversy exists at all stages of review, unless the injury is capable of repetition, yet evading review
Con Law - ABSTENTION ABSTENTION • Federal court will refuse to review a case based on an unsettled issue of state law (Pullman) • Federal court review prohibited where there are pending state criminal proceedings (Younger)
Con Law - Presidential Powers • Issuance of executive orders which have the binding force of law upon federal agencies • Commander in Chief • Appointment Powers • Emergency Powers • Clemency Powers
Con Law - Hierarchy of Laws 1. Constitution 2. Act of Congress Treaty 3. Executive Agreement- foreign policy/affairs Executive Order – domestic policy 4. State Law
Con Law - Generally Wrong Answers 1. General Welfare Clause 2. Necessary and Proper Clause 3. 14th A. Privileges and Immunities Clause 4. Contracts Clause 5. Distinction between Rights & Privileges 6. 10th Amendment- caveat New York v. U.S.
Con Law - Congressional Delegation of Power Congress may delegate the task of implementing its laws to government agencies. • Allows Congress to indirectly monitor an area in which it has passed laws without becoming bogged down in enforcement details
Con Law - Congressional Delegation of Power valid, if: - Congress passes enabling legislation (state or federal). - Specifies the purpose, functions, and powers. -Describes the procedures of the agency.
Con Law - Supremacy Clause • Superceding Doctrine: A federal law will supersede any state law in direct conflict. • Preemption Doctrine: Any state law in an area where Congress intends to occupy the field is unconstitutional.
Con Law - To Uphold a State Statute 1. Dormant Commerce Clause a. Non-discriminatory b. No undue burden on interstate commerce use a –balancing test 2. Police Power- health, safety, welfare, morals, aesthetics
Con Law - State Taxation • The Federal government is immune from state taxation • Federal employees and contractors may be taxed as long as the incidence of the tax does not fall on the Federal government itself
Con Law - To Uphold a Federal Statute 1. Supremacy clause 2. Any enumerated power of Congress (Art. 1, Sec. 8) 3. Federal property power
Con Law -Con Law Q Approach 1. Who is passing the law 2. What is the subject matter? 3. Match the appropriate power 4. Who is affected by the law?
Con Law - Property Power Congress has the power to dispose of the territory or other property belonging to the United States.
Con Law - Affectation Doctrine Congress may regulate any activity which has a “substantial economic effect” on interstate commerce.
Con Law - Regulation of Interstate Commerce Constitutional as long as : 1- Non Discriminatory and 2- Does not place an undue burden on Interstate Commerce
Con Law - State Action A threshold requirement of conduct by the government which must be satisfied before private discrimination can be restricted.
Con Law - Strict Scrutiny -Burden on government to show the regulation is Necessary to a compelling government interest -EX- Race, Alienage, National Origin
Con Law - Intermediate Scrutiny -Burden on government to show the regulation is substantially related to an important government interest -EX- Gender, Illegitimacy
Con Law - Rational Basis Scrutiny -Burden on plaintiff to show that the regulation is not rationally related to a legitimate government interest -EX- Poverty, Necessities, Age, Mental Retardation, Social and Economic Welfare Measures
Con Law - Statute Neutral on its Face Plaintiff must show: 1) discriminatory effect, and 2) discriminatory purpose To raise the burden of persuasion above rational basis.
Con Law - Fundamental Right of Privacy C Contraception A Abortion M Marriage P Procreation E Private Education R Family Relations
Con Law - Substantive Due Process A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive.
Con Law - Abortion (Casey) A state may regulate abortion provided no “undue burden” is placed on a woman’s right to woman s obtain an abortion.
Con Law - “Fundamental” Right to Vote Apply Strict Scrutiny: 1. Discrimination in voting 2. Reapportionment 3. Switching party affiliation 4. Ballot restrictions based on “special interests” (land ownership)
Con Law - Non-Fundamental Voting Rights Apply Rational Basis: - The right to be a candidate 1. Payment of a filing fee 2. Minimum and maximum age restrictions
Con Law - Article IV Privileges and Immunities Prevents economic discrimination by one state against citizens or residents of another state, unless a substantial government interest exists.
Con Law - Taking A regulation that denies the owner all reasonable economically viable use of his land.
Con Law - “Public Use” Requirement • Burden on the government to show the measure is rationally related to any conceivable purpose • To qualify as a “public purpose” the property does not have to be held out for use by the general public
Con Law - Bill of Attainder Legislative punishment of a named group or individual without judicial trial. EX - revoking a license
Con Law - Procedural Due Process The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest.
Con Law - Ex Post Facto Laws Unconstitutional criminal laws that: 1. Make criminal conduct that was not a crime when committed; or 2. Decrease the amount of evidence needed to convict/change the procedure(s) for conviction.
Con Law - “Content Specific” Regulation I) “Protected” Speech - apply SS II) “Unprotected’ Speech 1. Clear and Present Danger 2. Defamation 3. Obscenity 4. Child Pornography 5. “Fighting words” 6. Fraudulent commercial speech
Con Law - “Content Neutral” Regulation of Time, Place, Manner (Method) Apply 3-part test. Regulation must: 1. Further a significant government interest 2. Be narrowly tailored, and 3. Leave open alternative channels of communication
Con Law - 4 Facial Attacks 1. Over breadth 2. Vagueness 3 Prior Restraints 4. Unfettered Discretion
Con Law - Public Speaking Forums • Public Forum- streets, sidewalks, public parks -Areas generally open to public • Limited Public Forum- school rooms -Opened by state on permanent/limited basis • Non Public Forum- most other public places -Military bases, city bus...
Con Law - Vice Advertising (Central Hudson) Government regulation must: 1. Directly advance 2. a substantial governmental interest 3. and be “narrowly tailored”
Con Law - Free Exercise Methodology Purposeful interference - Apply strict scrutiny test Incidental burden - Apply rational basis test
Con Law - Establishment Clause (Lemon v. Kurtzman) In order not to violate the Lemon Test: 1. The primary purpose must be secular 2. Primary effect must neither inhibit nor advance religion 3. No excessive government entanglement with religion
Created by: shigal